In this article...
In this article, we explain what a revocation hearing is, including: How long will I be in custody? How do I know if I am being revoked? Should I waive my right to a revocation hearing? Why am I being revoked? Should I hire an attorney?, and What to expect.
Revocation is when an individual on supervision (probation, parole, or extended supervision) is in custody and their probation & parole agent/D.O.C. have decided, after investigating allegations of rule violations and/or new criminal behavior, that the individual has failed their supervision, and should be incarcerated for the remainder of their sentence or go back to a judge for sentencing. Once that happens, the individual will have the option to waive their right to a revocation hearing. If the individual does not waive his or her right, a revocation hearing will be scheduled, and the individual will be able to participate in a less formal hearing where the probation and parole agent will try to prove to an administrative law judge that the individual should be revoked from supervision, and that there are no appropriate alternatives to revocation.
In this article, we explain what a revocation hearing is, including:
- How long will I be in custody?
- How do I know if I am being revoked?
- Should I waive my right to a revocation hearing?
- Why am I being revoked?
- Should I hire an attorney?
- What to expect
How long will I be in custody?
Every case is unique, if there are serious new criminal allegations/charges, an individual may be held until those are resolved. However, it is often the case that an individual will be held on only a probation and parole hold. These probation and parole holds are supposed to be short, no more than a few weeks. It is possible and common for the probation and parole agent to get short extensions of the hold. You can see the governing statute by searching Wisconsin Statute 302.335(2)(a) or clicking here.
During the probation and parole hold, the agent will likely come to get a statement from the individual regarding the alleged violations. One possibility is that the agent will decide not to proceed with revocation. In this case, the individual may be released. The individual may also be released after agreeing to some Alternative to Revocation (ATR) and admitting by signature to the alleged violations, which could be used against them in the future.
The second possibility is that the agent will proceed with revocation. During the probation and parole hold, and after a statement is taken, the agent may “serve” the individual with revocation. This will include giving the individual a copy of the alleged violations against him or her, and asking the individual to sign acknowledging that they have been served with revocation. The agent will also ask if the individual would like to waive their right to a hearing. Assuming the individual does not waive this right, a revocation hearing should be scheduled about one month out. It is important to keep in mind that even though an individual is served with revocation, an ATR will still be an option, even at the hearing. From the initial date of custody to the date of the hearing should not exceed 50 days. You can see the governing statute by searching Wisconsin Statute 302.335(2)(b) or clicking here.
How do I know if I am being revoked?
The individual in custody must wait until an agent serves them with revocation or releases them. It is possible that an agent will serve an individual with revocation to get more custody time and continue working on an acceptable ATR. For example, placement in an institutional ATR, such as 3-4 month drug rehabilitation programs in a secure facility can require some time to get a spot. Again, even though an agent has proceeded with revocation and a hearing date is set, ATRs will still be an option. Just because the agent has proceeded with revocation does not mean that the individual will be revoked. The hearing will be an opportunity for both sides to make a case, and the Administrative Law Judge will decide whether or not the individual will be revoked.
Should I waive my right to a revocation hearing?
That is up to the individual in custody. It can certainly be a difficult decision. Waiting for over a month and being uncertain whether you will be able to return to your family, job, or whatever is waiting for you is daunting. If the only contact you have regarding your situation is with your probation and parole agent, it might seem like there is little hope of getting out. Depending on the sentence structure, the agent may even suggest that if you waive, they will propose a reduced incarceration time.
However, even though revocation seems informal compared to normal criminal proceedings, there is still a lot at stake. It is the difference between being free and being incarcerated, and it should be taken seriously.
Also, any time that you spend in custody will be credited to you. So even if you wait for the hearing and get revoked, the time you spent waiting in custody will be taken off your sentence.
Keep in mind that the agent’s opinion is not the only one that matters. They do not make the final decision. If the sentence structure allows them to make a recommendation, it is only a recommendation, and the judge will make sentencing decisions if there are any to make.
Why am I being revoked?
The way that the Department of Corrections decides to proceed with revocation is not on a whim. Everyone on supervision has a risk level associated with them. It is supposed to be an indicator of the risk that the individual will reoffend. This risk level is determined based, in part, on the offense(s) that the individual is on supervision for, prior criminal history, and the self-reported intake information collected at the beginning of supervision. Risk level also impacts how often the individual reports to their agent or how much his or her free exercise of activities is limited. Risk levels include low, medium, high, and intensive sex offender. Most people start at a higher risk level and work their way down over time.
Every violation can also be placed in a category based on how severe of a violation it is. For example, being late to a meeting with your agent is likely a very low-level violation, whereas committing a felony is likely a very high-level violation. However, violations can be moved to more or less severe categories if the agent can make the argument that there are aggravating or mitigating circumstances. For example, consuming alcohol is generally a low-level violation if it is part of the individual’s rules at all, but if the individual is on OWI #6 (aggravating circumstance), consuming alcohol could be considered a nexus to their original offense, and might be placed in a higher risk category, and could therefore justify a higher response.
So, when investigating the alleged violations, the agent will be looking at the individuals risk level and the severity of the violations to determine what types of response is justified. Revocation should only be a last resort, when no other, less severe response would be appropriate. An example of the response matrix below.
The violations and response grid are not the only considerations. Often, alleged violations include periods of absconding (failing to make yourself available to your agent), not being available for urinalysis drugs tests, and general failure to cooperate with the terms of supervision. A common argument is that the individual cannot be supervised because of an unwillingness to be supervised, and that there would likely be other violations had the individual been available for supervision. A breakdown in the individual’s relationship with his or her agent can make it more difficult to succeed on supervision.
Every case is different, but hopefully the above discussion will help you understand a little bit about what is going on behind the scenes.
Should I hire an attorney?
That decision is up to the individual on supervision. An attorney is not required, and many people are not even aware that they can have an attorney. However, there is often a lot on the line, and there is far less due process than one would expect in a criminal proceeding. The rules of evidence do not apply, and proof required for the violations is “more likely than not”, instead of “beyond a reasonable doubt.”
An attorney should be able to obtain the probation and parole agent’s supervision notes to use in helping test the veracity of the allegations. An attorney can advocate for appropriate alternatives to revocation. The “Plotkin Analysis” involves 3 questions that are generally considered at a revocation hearing, and an attorney should have a good idea of how to speak on those issues.
(1) confinement is necessary to protect the public from further criminal activity by the offender; or (2) the offender is in need of correctional treatment which can most effectively be provided if he is confined; or (3) it would unduly depreciate the seriousness of the violation if probation were not revoked.
In general, it can be good to have someone in your corner that knows what is going on during a revocation hearing.
What to expect
Perhaps the most important thing you should keep in mind is to be civil with your probation and parole agent. You do not have to agree with your agent, you may even feel that they have wronged you or are being vindictive. Being rude will do nothing to improve your circumstances. Even if your agent decides to proceed with revocation, ATRs are still an option, and if you maintain a decent relationship with your agent, it may improve the likelihood that ATRs are discussed before or during a revocation hearing.
Waiting while you are custody is frustrating, but it is inevitable. Consider taking the time to educate yourself, thoughtfully consider your options, and perhaps consult with an attorney.
If you succeed, and are not revoked, it is common to be assigned to a new agent.
What to Expect From a Consultation
The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.